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Who owns the photo?

You may have heard about the dispute of copyright ownership over a selfie taken by a macaque in 2011. The wildlife photographer who owned the camera claimed ownership when a website published the photo without his permission.

Under U.S. law, copyright in a photograph is the property of the person who presses the shutter on the camera — not the person who owns the camera, and not even the person in the photo. Unless a written agreement exists that makes the photo a work made for hire, any person you ask to take your picture with your camera owns the copyright in that photo — not you. How many of us have those photos on our cameras or cell phones? Selfies appear to be a better idea. But do monkeys own copyrights?

The answer is: “No, they do not.” The U.S. Copyright Office issued a document in December 2014, reiterating that it will not register works produced by nature, animals or plants. According to the Copyright Office, a photograph taken by a monkey is unprotected intellectual property. The monkey selfie falls into the public domain and may be used by anyone without permission.

So maybe the answer to owning those vacation photos of yourself is a drone? The Copyright Act states that copyright protection subsists in original works of authorship that are made either directly or with the aid of a machine or device. Copyright in photos from a drone operated directly by a human most likely are owned by …

Katy Perry’s left shark

By now, you probably have heard of the infamous “left shark” in Katy Perry’s Super Bowl XLIX halftime show, who went off script and did its own moves during “Teenage Dreams” and “California Gurls.”

So much buzz built about the shark that a 3D printing service, Shapeways, starting offering Left Shark models online, which prompted a letter from Perry’s attorneys insisting that the service stop sales immediately, claiming that the shark character was protected by copyright.

Shapeways sent a response stating that it did not appear that Perry owned the copyright for Left Shark (because a copyright is owned by the “author,” in this case the costume designer, and she did not design the costume), and that she had no basis because courts have held that costumes are useful articles and, thus, ineligible for copyright protection.

But wait! Though a costume may be classified as a useful article, courts also have held that design elements that are separate from the function of “clothing” are eligible for copyright. In fact, the U.S. Copyright Office lists a registration for “Shark costume; Children’s shark costume” (VA0000624682) owned by the Children’s Museum of Indianapolis.

Whether Perry does, in fact, own the copyright is yet to be determined, but this exchange is a lesson for business owners who send cease-and-desist letters without thinking about the consequences. In the past few days, the Internet has spiked with anti-Perry comments, and the model has been downloaded more than 11,000 times. Probably not the result Perry desired.…

Sony Data Hack: “You Can’t Lose What You Ain’t Never Had”

Back in the 1960’s, legendary bluesman Muddy Waters wrote a song called “You Can’t Lose What You Ain’t Never Had.”

Now, it is Sony Pictures that is singing the blues, as damages continue to mount following the cyber attack on its data networks just before Thanksgiving. A shadowy group with possible connections to the North Korean government has claimed responsibility for the hack, which, to date, has resulted in exposure of Sony intellectual property (e.g., movie scripts), trade secrets (e.g., film budgets), employee personal information (e.g., employee and former employee home addresses and social security numbers) and other sensitive information (e.g., actor travel aliases and phone numbers).

I’m no cybersecurity expert, but I’m at the point where I seriously doubt any currently available data security technology is totally hack-proof. Who knows, there may have been precious little that Sony could have done to prevent the loss of its intellectual property and trade secret information to determined hackers. Let’s face it, some of the most highly sophisticated corporations and government agencies have been victimized by cyber attacks in the last year. But the same really can’t be said for their employee data.…

The next big fight: 3D printing and intellectual property

Its time for our ink jet printers to move aside and begin to collect dust because there is a new kid in town: 3D printers. 3D printers are not technically “new” technology; they have been used by engineers since the 1980s. However, they are new to everyday consumers, and they threaten to become mainstream in 2014. This technology was mentioned in the President’s 2013 State of the Union speech, and even the cast of “Grey’s Anatomy” has been fighting over their 3D printer to build new life-saving organs. It is a hot topic and technology beginning to permeate news media and our everyday lives.

Our classic printers read information from digital documents and print the formatted text in ink, line by line, onto paper. A 3D printer, however, interprets CAD, or computer aided design, files — similar to a blueprint. These blueprints allow the 3D printers to “print” by building objects up layer-by-layer out of plastic, metal or other materials. This method of manufacturing allows for the elimination of older techniques such as injection molding.

This new technology has the promise to allow anyone to create almost anything wherever and whenever they want. Examples include the production of replacement parts for appliances, tools, medical prosthetics and potentially building biological organs out of organic material. One of the major patents protecting a specific type of 3D printer expired this week. The cost of 3D printers have decreased steadily due to the expiration of such patents on the 3D printers themselves. …

Who owns your website, software and other works of authorship?

Many businesses outsource work such as website creation, software development or other creative tasks, engaging the services of companies or individuals experienced in these fields. Some are surprised to learn, often the hard way, that paying someone to create your website, develop software or produce other works of authorship does not mean you own the copyright in the final work product. Lack of ownership may prove costly, as a copyright owner has the exclusive right to reproduce, distribute and even modify the original work.

Copyright protection, which has been referred to as the “forgotten stepchild” of intellectual property, deserves more respect and attention than it often receives. For starters, copyright protection is rather cheap — in fact, it’s actually free (more on that below). Unlike patents, you don’t need to spend thousands of dollars on an application, hoping that the Copyright Office agrees that you created something artistic or worthy of copyright.

Copyright protects works of authorship, including: literary works; musical works; dramatic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 17 U.S.C. § 102(a). Though copyright does not extend to ideas, processes, systems, discoveries, etc., the tangible expression of these — e.g., computer software — is entitled to copyright protection.…

Kirtsaeng v. John Wiley & Sons, Inc. and the ghost of Quality King

Under a recent U.S. Supreme Court ruling, publishers of books and magazines who print and sell their publications in other countries through distributors will no longer be able to rely on U.S. copyright law to prevent others from importing and re-selling those publications in the U.S. In Kirtsaeng v. John Wiley & Sons, Inc.1, the U.S. Supreme Court fully embraced international copyright exhaustion. Going against the views (admittedly dicta) expressed in its own unanimous decision from 1998, as well as the official position of the United States in international trade negotiations, the court held that the first sale doctrine applies to copyrighted works manufactured and sold abroad under the authority of the copyright owner. Such authorized manufacture and sale, even if done outside of the U.S., exhausts the copyright owner’s right to control the importation and distribution (i.e., sale) of such works.

As a result of Kirtsaeng, copyright owners will find it difficult to prevent the unauthorized importation of their works purchased in other countries (assuming, of course, that those works were made and sold abroad with the approval of the copyright owner). Though Kirtsaeng was limited to copyright, the majority opinion suggests that the Court may be willing to embrace international patent exhaustion as well.…

HOW IS AN AUTOMILE LIKE A DUCK TOUR? THINK GENERIC.

Co-Authored By: Robert J. Morgan For those businesses that might be tempted to enjoin another’s use of a common name, be advised: you might be inviting unexpected grief.  In a “where the rubber hits the road decision,” the Cuyahoga County (Ohio) Court of Appeals ruled recently in the case of Bedford Auto Dealers Ass’n v. Mercedes Benz of North Olmsted, 2012-Ohio-927, 2012 WL 760626 (Cuyahoga App. March 8, 2012), that the relatively common term “automile” is generic and not entitled to trademark protection.…

A Note of Caution When Suing for Copyright Infringement

Think recovery of attorneys’ fees in copyright infringement cases is just for plaintiffs? Think again. Plaintiffs’ counsel should take heed of the chilling tale in Fharmacy Records v. Salaam Nassar, Nos. 10-1354, 10-2073, 2012 WL 573942 (6th Cir. Feb. 23, 2012), discussed below. But first, some background. In Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), the Supreme Court explained that awards of fees to prevailing parties in copyright cases are discretionary and with respect to liability for them, copyright plaintiffs and defendants are to be held to the same standards. Since then, there have been scores of copyright cases in which courts have awarded fees. In most, it is the plaintiffs who have recovered. See, e.g., Balsley v. LFP, Inc., Case No. 1:08 CV 491, 2011 WL 1303738, **5-7 (N.D. Ohio March 31, 2011) (plaintiff prevailed but awarded only 40% of fees; thorough analysis of fee award). But on occasion, a defendant will win its fees. See, e.g., Chambers v. Ingram Book Co., Case No. 09-14731, 2012 WL 933237, **3-7 (E.D. Mich. March 20, 2012) (court awarded prevailing defendants just shy of $75,000 in attorneys fees). Whether intended or not, the principles governing Rule 11 are regularly applied when the issue is whether defendants should recover fees. See id. (in awarding fees, court found the lawsuit frivolous and motivations behind the filing of it highly questionable).…

“Dang” That Renewal Copyright Law

The Sixth Circuit recently issued a rare decision addressing ownership of renewal copyrights – in some of country singer Roger Miller’s songs: Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, Case No. 10-5363, 2012 WL 555485 (6th Cir. Feb. 22, 2012). It is worth a read if you have occasion to wrestle with renewal copyright issues. Renewal copyrights are unquestionably tedious business. Not long ago we handled a case involving issues of renewal copyrights dating from Germany prior to World War II. See Cambridge Literary Properties, Ltd v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG.,510 F.3d 77 (1st Cir. 2007), cert. denied, 129 S.Ct. 58 (2008). The case took sixty-five years to bring and eight years to resolve!…

iPhone Jailbreaking Exempted from DMCA Prohibitions

The Digital Millennium Copyright Act (DMCA) at 17 U.S.C. §1201(a) prohibits the circumvention of technological protection measures used by copyright owners to prevent copying. However, subsection (a)(1)(C) allows the United States Copyright Office every three years to exempt certain classes of copyrighted works from the circumvention prohibition if the prohibition is likely to adversely affect users in their ability to make noninfringing uses of those particular classes of works.

The Librarian of Congress, James H. Billington, on July 26 announced six new or more specifically defined classes of works to be exempted from the DMCA’s prohibition against circumvention of access-control technologies. “Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention,” Billington said.

The six classes of works are: (1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by a content scrambling system when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: (i) educational uses by college and university professors and by college and university film and media studies students; (ii) documentary filmmaking; and (iii) noncommercial videos (2) Computer programs that enable wireless telephone handsets to execute software …

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